George Orwell once wrote, "Big Brother is watching you". Thankfully, we do not live in the dystopian world depicted in Orwell's Nineteen Eighty-Four. However, there is an ever-growing list of new and innovative technology that has the ability to monitor individuals and record their personal information.
One emerging class of technology is "wearable technology", meaning any sort of monitoring device that an individual can wear on their body or clothes. Australian Privacy Commissioner, Timothy Pilgrim, has recently weighed-in on wearable technology and has encouraged employers to address the use of such technology in their workplace policies, stating "[i]f it does collect personal information, the policy could also outline how that information is used, disclosed and stored". 1
This leads us to ask, is the law robust enough, and are employers sufficiently prepared for, an influx of this sort of technology in the workplace? There is no single piece of legislation that stipulates what can and cannot be recorded. There are many variables at play, particularly what is being recorded, how it is being recorded and where it is being recorded.
From an employer's perspective, wearable technology presents a number of potential risks, including in relation to confidential information, privacy, surveillance, harassment and bullying. For example, it will be easier than ever before for employees to capture and distribute client lists, confidential trade secrets and the like. In addition, wearable technology also poses a new means for employees and contractors to engage in conduct that may amount to harassment or bullying. Employers will therefore need to ensure they take reasonable steps to prevent these devices being used in a way that contravenes any legislation, otherwise they will face liability. To complicate things, surveillance legislation exists at both federal and state or territory levels, and in many cases, stipulates differing requirements and obligations.
Telephone Surveillance
If it is not already in beta, wearable technology is expected to soon have the ability to sync with a person's smartphone, and could also have the ability to record telephone conversations or prompt a smartphone to record a conversation.
At the Federal level, s 7(1) of the Telecommunication (Interception and Access) Act 1979 (Cth) (TIA Act) prohibits, subject to certain exceptions, a person from:
- intercepting (by listening to, or recording, by any means);
- authorising, suffering or permitting another person to intercept; or
- doing any act or thing that will enable him or her or another person to intercept,
a "communication passing over a telecommunications system" without the consent of all parties to the conversation.
Therefore, the key question which determines whether a telephone recording falls within the scope of the TIA Act is whether the communication is in passage over a telecommunications system. The courts have tended to answer this question by drawing a highly technical distinction between connected and external equipment.
The use of a wearable recording device that is connected (for example, by Bluetooth or Near Field Communication) to a smartphone, or that somehow intercepts the smartphone's transmission, would involve audio-recording such that the TIA Act applies. Conversely, where the wearable recording device is considered to be external to the smartphone and records the conversation after the sound has emanated from the speaker, the recording does not appear to fall within the TIA Act. Instead, this recording would fall within the applicable state legislation.
The significance of this is potentially huge, as certain states do not prohibit this type of recording. In Victoria, for example, it is not unlawful for a conversation to be recorded, even without the consent of the parties involved. Sometimes it is necessary for the law to draw a technical distinction between two seemingly similar actions. But is this one step too far? Justice McGarvie, who decided the Victorian Supreme Court case of R v Curran and Torney, 2 certainly thinks so. His Honour stated that such a technical distinction is inappropriate:
Nonetheless, current commentary suggests that the law does draw such a distinction. With the introduction of this technological advancement, perhaps this is something that the legislature ought to consider.
Optical Surveillance
Are those glasses you are wearing, or is that a piece of recording equipment? With the introduction of "Google Glass", the answer to that question might well be "both". Google Glass is an innovative piece of technology that users wear over their right eye. It combines a display, internet connectivity and (significantly) a video camera all-in-one.
When Google Glass and other similar technologies enter the Australian market, how will they be regulated? And what will employers need to consider?
Unlike telephone surveillance, camera surveillance falls squarely within the jurisdiction of the states. New South Wales, Victoria, Western Australia and the ACT all have legislation that regulates optical surveillance. New South Wales and Victoria have workplace-specific legislation. For instance, in New South Wales, employers cannot commence surveillance of an employee at work without notifying the employee in writing. It is important that employers, particularly employers operating across multiple jurisdictions, are across such nuances so they do not fall foul of the different legislative obligations.
Implications for Employers — The Time to Act is Now
It is fair to say that many employers were not adequately prepared for the plethora of issues that arose with the advent of social media. For instance, can an employer use social media to gather information about a job applicant? Can an employer prohibit employees from using social media at work? Can an employer direct its employees about the content they post on social media and monitor information they post on it outside of their capacity at work?
Being in the dark about these issues caused employers signi?cant grief. Employers should ensure they are better prepared this time around. This does not necessarily mean that employers should be concerned about wearable technology. Like most emerging technology, wearables are designed to improve connectivity, increase productivity and promote synergy. However, as some technology has the potential to surreptitiously record personal and con?dential information, employers need to be proactively considering the implications of their employees and contractors using that technology.
A number of recent sexual harassment cases in the Federal Court have had the combined effect of significantly extending the definition of the "workplace", and awarding significantly higher damages than previously had been considered appropriate. Given these recent developments, the stakes are even higher for employers to keep up to date with changes in technology and ensure their policies adequately protect against employees and contractors using that technology to carry out potentially unlawful conduct.
The key message for employers, therefore, is that they need to review, implement or update workplace policies to ensure they deal with the new risks posed by wearable technology. Employers' policies must consider the new risks to confidential information posed by wearable technology, canvas what is and is not appropriate usage of such devices in the workplace to attempt to guard against breaches of privacy, surveillance and harassment and bullying legislation, and perhaps go so far as to govern how employees can "sync" their various devices with social media in the workplace.
As with all policies regarding appropriate workplace conduct, employees and contractors will then need to be provided with appropriate and relevant training on the new policies. In addition, conduct in the workplace will need to be closely monitored to ensure any infractions are appropriately dealt with.
Footnotes
1Sydney Morning Herald, Work wearables:
policies needed, 16 June 2014, accessed 16 September 2014,
www.smh.com.au.
2R v Curran and Torney [1983] 2 VR 133 at
[153]; (1982) 50 ALR 745.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
